I. Introduction: History & Background

In January 2008, the Utah Supreme Court adopted Utah Rule of Evidence 509. This rule provides broad protection to news reporters. In particular, it provides nearly absolute protection for confidential source information and qualified protection for non-confidential newsgathering information. Adoption of Rule 509 culminated nearly three years of intensive efforts by Utah news organizations and media outlets to enact a shield law. In adopting this rule, Utah became one of the last states to adopt a reporter’s privilege (either by statute, court rule, or appellate court opinion). Although there are not yet any judicial decisions interpreting the new rule, its robust protection for newsgathering expands the protection previously recognized under the First Amendment by state and federal trial courts in Utah. Prior to the adoption of this rule, Utah journalists and news organizations had been successful in persuading state and federal trial courts to quash subpoenas seeking reporters' testimony and news gathering material in a variety of criminal and civil cases on the grounds that the First Amendment provided a qualified privilege protecting such material. See generally Edward L. Carter, Reporter's Privilege in Utah, 18 BYU Journal of Public Law 163 (2003). State trial judges also had recognized the existence of a qualified reporter's privilege for both confidential and non-confidential information, such as outtakes and reporter notes. However, some Utah trial judges, citing the lack of a shield law or reported appellate decision defining the reporter's privilege, had been reluctant to afford journalists more than token protection from subpoenas. News reporters and photographers covering several high-profile criminal cases in 2001 and 2002 were forced to defend themselves against prosecutors' subpoenas and threats of subpoenas. Now that Rule 509 has been adopted, it is likely that courts will be much more willing, indeed obligated, to broadly protect both confidential and non-confidential newsgathering information.

Authors' note: The authors would like to thank Professor Edward Carter, Brigham Young University, who provided valuable research and writing assistance on this project.

II. Authority for and source of the right

Neither the Utah Constitution nor the Utah Code explicitly recognizes a reporter’s privilege. However, in January 2008, the Utah Supreme Court adopted Utah Rule of Evidence 509, which creates a privilege for reporters. Utah appellate courts have yet to apply this rule, although prior to this rule, both the Utah Supreme Court and the Utah Court of Appeals mentioned in dicta the existence of some form of newsgathering protection based on Branzburg v. Hayes, 408 U.S. 665 (1972). See Redding v. Jacobsen, 638 P.2d 503 (Utah 1981); State v. Krueger, 975 P.2d 489 (Utah Ct. App. 1999). Various Utah trial courts and the U.S. District Court for the District of Utah also found a qualified First Amendment privilege based not only on Branzburg but also Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977). See, e.g., Bottomly v. Leucadia Nat'l Corp., 24 Med. L. Rep. 2118, 1996 U.S. Dist. LEXIS 14760 (D. Utah July 2, 1996); see also Wood v. Farmington City, No. 2:10-CV-933-DB-PMW, 2011 WL 5834430, at *2 (D. Utah Nov. 21, 2011) (recognizing reporter’s privilege and applying Silkwood factors without reference to Rule 509).

A. Shield law statute

The Utah Legislature has not enacted a statutory shield law. Under the Utah Constitution, the Utah Supreme Court – not the Legislature – is given primary authority for enacting rules of evidence, including evidentiary privileges. See Utah Const. art. VIII, § 4. Accordingly, in January 2008, the Utah Supreme Court adopted Utah Rule of Evidence 509—a rule which created a reporter’s privilege for Utah. This rule was the culmination of two-and-one-half years of study and debate by the Utah Supreme Court Advisory Committee—a committee of lawyers and judges. Media Counsel representing nearly every journalism and news organization in Utah petitioned the Committee to create a reporter’s privilege rule and were intensely involved in the drafting and comment process. The Advisory Committee Note indicates that the purpose of this rule is “to address any uncertainty that may exist under Utah Law and to provide for uniformity in the recognition of the privilege by Utah courts.” Utah R. Evid. 509 advisory committee note (2008).

Under Rule 509, which provides an expansive privilege to news reporters, a reporter may be compelled to disclose confidential source information only when “the person seeking the information demonstrates by clear and convincing evidence that disclosure is necessary to prevent substantial injury or death.” Utah R. Evid. 509(b). Unpublished information also is protected. If the unpublished information is confidential, then the person seeking the information must demonstrate a need “for that information that substantially outweighs the interest of a continued free flow of information to news reporters.” Id. 509(c). For nonconfidential unpublished news information, the person claiming the privilege must demonstrate “that the interest of a continued free flow of information to news reporters outweighs the need for disclosure.” Id. 509(d).

The Advisory Committee Note provides guidance on how courts should apply this rule. See Utah R. Evid. 509 advisory committee note (2008). Specifically, a court should “consider the interests of the person seeking disclosure and the interests of the free flow of information to news reporters.” Id. In balancing the various interests of the parties, courts should consider those factors set forth in Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977), including “(1) whether the party seeking the information has attempted independently to obtain the information, (2) whether the information being sought goes to the heart of the matter, (3) whether the information is of certain relevance, and (4) the type of controversy.” Utah R. Evid. 509 advisory committee note (2008). The Note also emphasizes that “[a]s the law in this area continues to develop, the court should consider other factors found to influence the open and free flow of information that is vital to our culture and form of government.” Id.

The privileges provided under this rule may “be claimed, as applicable, by the news reporter, the organization or entity on whose behalf the news reporter was acting, the confidential source, the news reporter’s or confidential source’s guardian or conservator or the personal representative of a deceased news reporter or confidential source.” Utah R. Evid. 509(e). Significantly, the definition of news reporter is broad and flexible. It provides, “‘News reporter’ means a publisher, editor, reporter or other similar person gathering information for the primary purpose of disseminating news to the public and any newspaper, magazine, or other periodical publication, press association or wire service, radio station, television station, satellite broadcast, cable system or other organization with whom that person is connected.” Id. 509(a)(1). The Advisory Committee Note explains that “[t]he rule incorporates a relatively broad and flexible definition of news reporter to accommodate the ever-changing methods of expression and publication. While there are not many ‘lone pamphleteers’ still functioning, they may have modern-day counterparts on the internet.” Id. 509 advisory committee note (2008).

Finally, subparagraph (f) gives reporters an additional layer of protection. It provides that once a court makes an initial determination that information claimed to be published should be disclosed, “the court shall conduct an in camera review of that information before making a final determination requiring disclosure.” Utah R. Evid. 509(f).

B. State constitutional provision

C. Federal constitutional provision

The Advisory Committee Note to Utah Rule of Evidence 509 recognizes that “[p]rotection of news gathering and dissemination has roots in the First Amendment of the United States Constitution.” Utah R. Evid. 509 advisory committee note (2008). Even before the adoption of this rule, Utah appellate courts indirectly recognized the existence of First Amendment protections for news gathering based on Branzburg v. Hayes, 408 U.S. 665 (1972). The Utah Supreme Court, writing in dicta in the case of a reporter seeking access to government information, quoted the statement from Branzburg that “‘news gathering is not without its First Amendment protections.’” Redding v. Jacobsen, 638 P.2d 503, 508 (Utah 1981) (quoting Branzburg, 408 U.S. at 707); see alsoState v. Krueger, 975 P.2d 489, 497 (Utah Ct. App. 1999) (citing Branzburg for “recognizing First Amendment protection for news gathering”).

Utah trial courts presented with the issue likewise have found the existence of a qualified First Amendment privilege based on Branzburg and Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977). For example, a Third District judge in Salt Lake County quashed a subpoena of a newspaper reporter who had interviewed a murder defendant because “[a]s a newspaper reporter, Ms. Donaldson enjoys a qualified First Amendment privilege from being compelled to testify at the trial of the defendant.” State v. Koolmo, No. 981905396 (Utah 3d Dist. Ct. March 29, 1999) (Judge Robert K. Hilder). Other state trial judges have made similar statements with respect to the reporter's privilege granted by the First Amendment. See, e.g.,In re: Inquiry of the State Ballot Law Commission of the State of Massachusetts, No. 020905264 (Utah 3d Dist. Ct. June 25, 2002) (Judge Ronald E. Nehring) (applying qualified First Amendment privilege to subpoena demanding reporter's deposition testimony and allowing affidavit from reporter in lieu of deposition); Lester v. Draper, No. 000906048 (Utah 3d Dist. Ct. Jan. 16, 2002) (Judge J. Dennis Frederick) (applying qualified First Amendment privilege to subpoena of reporter in civil case and quashing subpoena because subpoenaing party failed to meet burden to show need, relevance and lack of alternative sources); State v. Michaels, No. 011902114 (Utah 3d Dist. Ct. July 9, 2001) (Judge Dennis M. Fuchs) (quashing subpoena seeking unaired videotape where information on videotape was available through an alternative source); Diaz v. DeLeura, No. 040916320 (Utah 3d Dist. Ct. 2006) (quashing subpoena seeking to depose newspaper reporter in a civil defamation case not involving the newspaper).

A U.S. District Court Magistrate Judge found a First Amendment privilege that justified quashing the subpoena of two Salt Lake City newspaper reporters in an employment discrimination case. Bottomly v. Leucadia Nat'l Corp., 24 Med. L. Rep. 2118, 1996 U.S. Dist. LEXIS 14760 (D. Utah July 2, 1996) (Magistrate Judge Ronald N. Boyce). Utah's federal district court judges have followed Silkwood and Bottomly in recognizing a qualified First Amendment reporter's privilege, and have applied the privilege in criminal and civil cases. See, e.g.,United States v. Jenkins, No. 2:03CR0526 (D. Utah 2003) (applying qualified First Amendment privilege to quash, in part, subpoena seeking photographs taken by newspaper at Rainbow Family Campout); Nilson v. Layton City, No. 92-NC-112W (D. Utah 1994) (applying qualified First Amendment privilege in upholding subpoena seeking testimony in civil trial from television reporter who reported statements of police officer that plaintiff had a prior expunged criminal conviction).

D. Other sources

III. Scope of protection

A. Generally

With the adoption of Rule 509, the scope of protection afforded to journalists in Utah by the reporter's privilege has become relatively broad. Under this rule, a reporter may be compelled to disclose confidential source information only when “the person seeking the information demonstrates by clear and convincing evidence that disclosure is necessary to prevent substantial injury or death.” Utah R. Evid. 509(b). Unpublished information also is protected. If the unpublished information is confidential, then the person seeking that information must demonstrate a need “for that information that substantially outweighs the interest of a continued free flow of information to news reporters.” Id. 509(c). For nonconfidential unpublished news information, the person claiming the privilege must demonstrate “that the interest of a continued free flow of information to news reporters outweighs the need for disclosure.” Id. 509(d).

B. Absolute or qualified privilege

Under Rule 509, the reporter’s privilege is nearly absolute with regard to confidential source information, and a court can compel a reporter to disclose such information only when “the person seeking the information demonstrates by clear and convincing evidence that disclosure is necessary to prevent substantial injury or death.” Utah R. Evid. 509(b). A qualified privilege protects unpublished information.

C. Type of case

1. Civil

As an evidentiary rule, Rule 509 applies to both civil and criminal cases. See also Lester v. Draper, No. 000906048 (Utah 3d Dist. Ct. Jan. 16, 2002) (“The reporter's privilege applies in civil as well as criminal cases.”). Likewise, the factors previously defined by the U.S. Court of Appeals for the Tenth Circuit and employed by Utah trial courts to determine whether a reporter's privilege prevails over a subpoena do not differ in civil and criminal cases: “(1) whether the party seeking information has independently attempted to obtain the information elsewhere and has been unsuccessful, (2) whether the information goes to the heart of the matter, (3) whether the information is of certain relevance, [and] (4) the type of controversy.” Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977); see also Utah R. Evid. 509 advisory committee note (2008) (indicating the courts should consider the Silkwood factors as well as factors that support the open and free flow of information). The fourth Silkwood factor distinguishes civil cases, where the privilege is stronger, from criminal cases, where the privilege is weaker. A state trial judge found that “the balancing of interests requires a stronger showing of need by a party seeking production of privileged newsgathering material in a civil case, as compared to a criminal case, because the constitutional rights of a criminal defendant are not implicated.” Lester v. Draper, No. 000906048 (Utah 3d Dist. Ct. Jan. 16, 2002).

2. Criminal

The factors weighed by Utah trial courts in determining the scope of protection afforded by the reporter's privilege in criminal cases do not differ from the factors applied in civil cases: “(1) whether the party seeking information has independently attempted to obtain the information elsewhere and has been unsuccessful, (2) whether the information goes to the heart of the matter, (3) whether the information is of certain relevance, [and] (4) the type of controversy.” Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977).

Although the fourth factor weighs in favor of requiring a reporter to testify in a serious criminal case, prior to the enactment of Rule 509, one Utah trial court quashed a subpoena after the reporter who conducted a jailhouse interview with a murder defendant offered to submit testimony by affidavit. State v. Koolmo, No. 981905396 (Utah 3d Dist. Ct. March 29, 1999). Another trial judge quashed a subpoena after an in camera review revealed that the video outtake sought by prosecutors contained the identical information as a publicly available written statement made by a criminal defendant. State v. Michaels, No. 011902114 (Utah 3d Dist. Ct. July 9, 2001).

In a capital homicide prosecution, however, a trial judge declined to quash a subpoena seeking the testimony of a reporter who received a confession letter and then conducted a jailhouse interview with the accused murderer. State v. Martinez, No. 011501042 (Utah 5th Dist. Ct. April 29, 2002). Despite the fact that the information sought from the reporter arguably was available from other sources, the judge reasoned that the public interest in prosecuting the homicide outweighed the reporter's privilege. However, the judge was careful to point out that his decision was based on the particular facts of the case before him, and that the case involved an especially brutal and senseless murder in a small community. See id. It is also unclear whether the court’s holding would have been the same had Rule 509 been enacted at the time.

Utah trial courts have not had occasion to distinguish between subpoenas from government prosecutors and private defendants.

3. Grand jury

D. Information and/or identity of source

Rule 509 “provides the greatest protection to the name of a confidential source or other information that would lead directly to the disclosure of the source's identity.” Utah R. Evid. 509 advisory committee note (2008). For information obtained on condition of confidentiality, Rule 509 requires the person seeking the information to demonstrate that the need for the information “substantially” outweighs the interests of society in protecting the information from disclosure. Id. 509(c). “For other unpublished news information, however, the person claiming the privilege must demonstrate that the need to encourage the free flow of information outweighs the need for disclosure.” Utah R. Evid. 509 advisory committee note (2008).

E. Confidential and/or nonconfidential information

Rule 509 provides a nearly absolute privilege for confidential source information, only compelling disclosure if “the person seeking the information demonstrates by clear and convincing evidence that disclosure is necessary to prevent substantial injury or death.” Id. 509(b). Confidential unpublished news information is protected “unless the person seeking the information demonstrates a need for that information that substantially outweighs the interest of a continued free flow of information to news reporters.” Id. 509(c). A reporter also has a privilege to refuse to disclose nonconfidential, unpublished news information “if the person claiming the privilege demonstrates that the interest of a continued free flow of information to news reporters outweighs the need for disclosure.” Id. 509(d). No Utah appellate court has applied Rule 509. However, even prior to the adoption of this rule, Utah trial court’s generally treated confidential information as deserving greater protection under the reporter's privilege.

For example, one Utah trial judge wrote in a memorandum decision, “[i]nformation that is unpublished or confidential is really at the heart of the reporter's privilege. Reporters will not be compelled to testify as to information that falls into these categories.” State v. Halvorson, No. 001500343 (Utah 5th Dist. Ct. Oct. 13, 2000). In that case, the trial court recognized that ABC News had an interest in blurring the faces of individuals who appeared on a videotape that depicted an alleged crime. The court said that ABC News “clearly [had] the right to [blur the videotape] to protect the confidential and unpublished identities of those shown in the video.” Id. However, the court then reasoned that ABC News's protection of confidential source identities would make the testimony of the ABC News reporter who witnessed the crime even more crucial. Ultimately, the court declined to quash the subpoena seeking the reporter's testimony in part because ABC News's confidentiality claims were outweighed by the public interest in the prosecution of the crime. See id. The reporter did not have to testify, however, because the defendants entered into a plea agreement with prosecutors.

Another trial judge reasoned that a reporter should testify about her jailhouse interview with a murder defendant in part because the information sought was not confidential. State v. Martinez, No. 011501042 (Utah 5th Dist. Ct. April 29, 2002). In that case, the trial judge also found that the reporter's privilege was weakened by the fact that the reporter had not cultivated a source or sought confidential information on her own initiative; rather, the reporter merely received a confession letter from the murder defendant and then followed up on the letter with a personal interview. However, the judge cited no authority for examining whether the source or the reporter initiated the contact that led to creation of the journalistic “work product,” and no other Utah trial court has employed such reasoning.

F. Published and/or non-published material

Rule 509 does not specifically address published information. It does, however, provide a qualified privilege for both confidential and other unpublished news information. Under this rule “confidential unpublished news information” is defined to mean “information, other than confidential source information, that is gathered by a news reporter on condition of confidentiality. This includes notes, outtakes, photographs, tapes or other data that are maintained by the news reporter or by the organization or entity on whose behalf the reporter was acting to the extent such records include information that was provided on condition of confidentiality.” Id. 509(a)(3). “Other unpublished news information” is defined to mean “information, other than confidential unpublished news information, that is gathered by a news reporter. This includes notes, outtakes, photographs, tapes or other data that are maintained by the news reporter or by the organization or entity on whose behalf the reporter was acting.” Id. 509(a)(4).

Prior to the implementation of this rule, one Utah trial judge suggested that unpublished information should be afforded greater protection than published information. That judge's memorandum decision stated that “[r]eporters will not be compelled to testify” as to unpublished information. State v. Halvorson, No. 001500343 (Utah 5th Dist. Ct. Oct. 13, 2000). In that case, the program “20/20” had broadcast portions of a tape sought by a county prosecutor. The tape allegedly contained the operative criminal act in the case of two men charged with practicing medicine without a license for drilling a hole in a woman's skull in a New Age procedure called trepanation. The trial court rejected a claim by ABC News that a reporter's testimony and portions of a video outtake were unpublished. Although the judge refused to quash the subpoena, the issue became moot before the reporter testified because the defendants entered guilty pleas and thus avoided trial.

G. Reporter's personal observations

Rule 509 does not exempt a reporter’s personal observations from the protection of the rule. In cases where a reporter is a witness to a crime, a court must consider the Silkwood factors to determine whether the interest of a continued free flow of information to news reporters outweighs the need for disclosure. See e.g., Wood v. Farmington City, No. 2:10-CV-933-DB-PMW, 2011 WL 5834430, at *2 (D. Utah Nov. 21, 2011) (recognizing qualified privilege for reporters and court’s obligation to consider Silkwood factors but not specifically applying Rule 509). In Wood, a magistrate judge considered whether to quash the subpoena of a Salt Lake City newspaper reporter who witnessed and photographed a police standoff that ended in the death of the plaintiff. See id. In weighing the Silkwood factors, the Court determined the qualified First Amendment privilege for information acquired in the course of gathering news did not justify quashing the subpoena where the reporter was the only witness who was not affiliated with the police involved or the plaintiff that was shot and killed because “[t]he information sought by the Subpoena [went] directly to the heart of [the] case and [was] highly relevant to the claims and defenses.” Id. The Court “determined that [the first] two factors outweigh[ed] the remaining two factors.” Id.

In cases where the leak of information to the reporter is alleged to be a crime, and thus the reporter a witness to the crime, a court must again balance the need for disclosure of confidential and nonconfidential unpublished information against the interest in preserving the “continued free flow of information to news reporters” and therefore the public. See Utah R. Evid. 509 (c) & (d). This language allows for consideration of the public value of the information reported to the public, a factor not expressly provided by Silkwood or Bottomly but that is critical in leak cases.

IV. Who is covered

A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

Rule 509 defines a “news reporter” as “a publisher, editor, reporter or other similar person gathering information for the primary purpose of disseminating news to the public and any newspaper, magazine, or other periodical publication, press association or wire service, radio station, television station, satellite broadcase, cable system or other organization with whom that person is connected.” Id. 509(a)(1). The 2008 Advisory Committee Note to this rule indicates that “[t]he rule incorporates a relatively broad and flexible definition of news reporter to accommodate the ever-changing methods of expression and publication. While there are not many ‘lone pamphleteers’ still functioning, they may have modern-day counterparts on the internet.” Utah R. Evid. 509 advisory committee note (2008).

c. News

d. Photo journalist

e. News organization/medium

The definition of “news reporter” under Rule 509 includes “any newspaper, magazine, or other periodical publication, press association or wire service, radio station, television station, satellite broadcast, cable system or other organization” with whom a person gathering news “for the primary purpose of disseminating [it] to the public” is connected. Id. 509(a)(1).

2. Others, including non-traditional news gatherers

The reporter’s privilege in Utah protects “a publisher, editor, reporter or other similar person gathering information for the primary purpose of disseminating news to the public.” Utah R. Evid. 509(a)(1). The Advisory Committee has stated that “[t]he rule incorporates a relatively broad and flexible definition of news reporter to accommodate the ever-changing methods of expression and publication. While there are not many ‘lone pamphleteers’ still functioning, they may have modern-day counterparts on the internet.” Rule 509 advisory committee note (2008).

B. Whose privilege is it?

The privileges set forth in Rule 509 may “be claimed, as applicable, by the news reporter, the organization or entity on whose behalf the news reporter was acting, the confidential source, the news reporter’s or confidential source’s guardian or conservator or the personal representative of a deceased news reporter or confidential source.” Utah R. Evid. 509(e).

V. Procedures for issuing and contesting subpoenas

A subpoena in a criminal case must be personally served and “may compel the attendance of a witness from anywhere in the state.” Utah R. Crim. P. 14(a)(3) and 14(a)(5). In a civil case, a subpoena may be personally served or, in some cases, served by mail or commercial courier service and may command the attendance and testimony of a person residing in the state or a person served within the state. Utah R. Civ. P. 4(d); Utah R. Civ. P. 45(b)(1) and 45(c). A process server other than an attorney, sheriff, constable or deputy U.S. marshal must provide proof of service by affidavit. Utah R. Civ. P. 4(e). Unless the subpoena is issued on behalf of the state or federal government, the issuing party or attorney must provide the person receiving the subpoena fees for one day's attendance and mileage. Utah R. Civ. P. 45(b)(2). A subpoena in a civil case requiring appearance at trial or a hearing may be served anywhere in the state. Utah R. Civ. P. 45(c).

A. What subpoena server must do

1. Service of subpoena, time

A subpoena in a criminal case must be personally served and “may compel the attendance of a witness from anywhere in the state.” Utah R. Crim. P. 14(a)(3) and 14(a)(5). In a civil case, a subpoena may be personally served or, in some cases, served by mail or commercial courier service and may command the attendance of a person either residing in the state or served within the state. Utah R. Civ. P. 4(d), 45(b)(1), and 45(c). A subpoena in a civil case requiring appearance at trial or a hearing may be served anywhere in the state. Utah R. Civ. P. 45(c). A process server other than an attorney, sheriff, constable or deputy U.S. marshal must provide proof of service by affidavit. Utah R. Civ. P. 4(e). Unless the subpoena is issued on behalf of the state or federal government, the issuing party or attorney must provide the person receiving the subpoena fees for one day's attendance and mileage. Utah R. Civ. P. 45(b)(2).

2. Deposit of security

3. Filing of affidavit

4. Judicial approval

In the case of a judicially approved criminal investigation used as an alternative to the grand jury process, a prosecutor seeking to subpoena any person must first apply to a state trial judge for approval to serve a subpoena. See Utah Code Ann. § 77-22-2(3)(b)(i). The prosecutor must “show that the requested information is reasonably related to the criminal investigation authorized by the court.” Utah Code Ann. § 77-22-2(3)(b)(ii).

5. Service of police or other administrative subpoenas

County and state prosecutors investigating violations of controlled substance laws may issue administrative subpoenas to third parties. Utah Code Ann. § 77-22a-1. The administrative subpoena power in this context is not explicitly limited by the First Amendment, although the power is restricted where “it is clear” that the information sought is “subject to a claim of protection under the Fourth, Fifth, or Sixth Amendment” and corresponding state constitutional provisions. Utah Code Ann. § 77-22a-1(1)(a).

Parties appearing before the State Records Committee may subpoena witnesses with the approval of the committee chair, as long as the subpoenas are served at least seven days before the scheduled hearing. Utah Admin. Code R35-5-2(3). A former city councilman seeking certain city records in 2008 gained approval of the committee chair to subpoena three newspaper reporters who had covered the story of the councilman's criminal citation for allegedly assaulting a city police officer. See State Records Committee Appeal 98-08, available athttp://www.archives.utah.gov/src/srcappeal-1998-08.html. One of the subpoenas was not served because the reporter had temporarily left the state. See id. Attorneys for one of the other journalists argued before the committee that his testimony could not be compelled and the reporter simply did not show up at the hearing. See id. The subpoena of the third journalist was quashed by the State Records Committee because the subpoena placed an undue burden on the reporter and because the reporter's testimony was not material. See id.

B. How to Quash

1. Contact other party first

Utah law does not require that the party being subpoenaed contact the subpoenaing party before filing a motion to quash. See Utah R. Civ. P. 7; Utah R. Civ. P. 45. However, some subpoenas directed to news reporters can be resolved informally without the need to file a motion to quash, and it is generally a good idea to attempt such a resolution initially.

2. Filing an objection or a notice of intent

Utah law does not require that a notice of intent to quash be filed before the motion to quash a subpoena. See Utah R. Civ. P. 7; Utah R. Civ. P. 45. If a party is subpoenaed solely for the production of documents (a subpoena duces tecum), then the party may serve a written objection on the requesting party within the time afforded for compliance. Upon service of this objection, the requesting party is not permitted to inspect the requested documents absent a court order obtained by filing a motion to compel with the court. See Utah R. Civ. P. 45(e)(5). However, a written objection does not relieve a party of its obligation to appear to give testimony pursuant to a subpoena. The party subpoenaed should file a motion to quash before the scheduled date for such an appearance.

3. File a motion to quash

a. Which court?

b. Motion to compel

The media party does not have to wait for the subpoenaing party to file a motion to compel before filing a motion to quash a subpoena. See Utah R. Civ. P. 7; Utah R. Civ. P. 45. Even if the media party serves a written objection to a subpoena duces tecum, the media party may, as a strategic matter, want to file a motion to quash rather than wait for the requesting party to file a motion to compel.

c. Timing

A motion to quash should be filed or a written objection should be served before the time for compliance specified in the subpoena. A subpoena duces tecum must provide the media party at least fourteen (14) days for compliance. See Utah R. Civ. P. 45(e)(2). A subpoena seeking testimony must provide the media party a “reasonable time for compliance.” Utah R. Civ. P. 45(e)(3)(A).

d. Language

There is no stock language or preferred text that needs to be included in a motion to quash a subpoena. Aside from discussing the substantive elements of the reporter's privilege, the party should discuss generally the grounds for quashing a subpoena set forth in the applicable Rules of Criminal and Civil Procedure. See Utah R. Civ. P. 45(e); Utah R. Civ. P. 26(b) and 26(c); Utah R. Crim. P. 14.

e. Additional material

Courts generally accept attachments such as the Reporters Committee for Freedom of the Press report “Agents of Discovery,” although the extent to which courts consider such materials in making decisions is difficult to assess.

4. In camera review

a. Necessity

Once the court makes an initial determination that information which is claimed to be privileged should be disclosed, the court is required to conduct an in camera review of the subject information before making a final determination requiring disclosure. Utah R. Evid. 509(f).

b. Consequences of consent

c. Consequences of refusing

5. Briefing schedule

Unless otherwise ordered by the court, motions to quash subpoenas follow the normal briefing schedule set forth by the Utah Rules of Civil Procedure. Under this schedule, a party opposing a motion may file an opposition memorandum within fourteen (14) days of service of the motion. Utah R. Civ. P. 7(d)(1). The moving party may file a reply memorandum within seven (7) days of service of this opposition memorandum. Utah R. Civ. P. 7(e)(1). Computation of these time periods is governed by Rule 6(a) of the Utah Rules of Civil Procedure.

Often, this normal briefing schedule will not allow the motion to quash to be resolved before the time for scheduled testimony, and the parties should therefore request an expedited briefing schedule and hearing.

6. Amicus briefs

There is no general rule regarding the acceptance of amicus briefs in cases involving reporter's privilege issues, although at least some trial judges have been amenable to amicus participation. Two groups that have previously been involved in such cases as amici are the Utah Headliners Chapter of the Society of Professional Journalists and the Utah Press Association.

VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

With respect to confidential source information and confidential unpublished news information, the burden of proof is on the party seeking such information. See Utah R. Evid. 509(b) & (c). With respect to nonconfidential unpublished news information, the initial burden of proof is upon the party claiming the privilege to demonstrate that “the interest of a continued free flow of information to news reporters outweighs the need for disclosure.” See Rule 509(d). This burden is satisfied by applying the factors set forth in Silkwood and Bottomly, i.e. materiality and relevance of information sought, availability of information from alternative source, the type of controversy, as well as other public interest factors. See Utah R. Evid. 509 advisory committee note (1998). Once a news reporter establishes that application of the Siklkwood/Bottomly and public interest factors weigh in favor of non-disclosure, the burden shifts to the party seeking disclosure of the information.

B. Elements

1. Relevance of material to case at bar

The Advisory Committee Note to Rule 509 states that in determining whether the need for the information outweighs the interest of a continued free flow of information to news reporters, the court should consider the factors set forth in Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977). Utah R. Evid. 509 advisory committee note (1998). In that case, the U.S. Court of Appeals for the Tenth Circuit held that litigants seeking evidence or testimony from a reporter through a subpoena had to demonstrate that the information sought was "of certain relevance" to the case. Silkwood, 563 F.2d at 438. A magistrate judge in the U.S. District Court for the District of Utah quashed a subpoena of two reporters in part because the party seeking the reporters' testimony had failed to demonstrate certain relevance. Bottomly v. Leucadia Nat'l Corp., 24 Med. L. Rep. 2118, 1996 U.S. Dist. LEXIS 14760 (D. Utah July 2, 1996). Instead, the magistrate judge concluded, the reporters' testimony had only been shown to be potentially logically probative but likely peripheral.

A related requirement expounded by the Tenth Circuit in Silkwood is that the information sought must “go[] to the heart of the matter.” Silkwood, 563 F.2d at 438. The U.S. District Court for the District of Utah described this requirement as “central or core to the litigation.” Bottomly, 1996 U.S. Dist. LEXIS at *7. A Utah trial court ruled that, in civil cases at least, litigants must demonstrate a “critical need” for information in order to overcome the reporter's privilege. Lester v. Draper, No. 000906048 (Utah 3d Dist. Ct. Jan. 16, 2002).

2. Material unavailable from other sources

The Advisory Committee Note to Rule 509 cites Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977), for the principle that, in balancing the interests, the court should consider “whether the party seeking the information has attempted independently to obtain the information.” Utah R. Evid. 509 advisory committee note (2008). Prior to adoption of Rule 509, several Utah trial courts applied the Silkwood factors and found the existence of alternative sources to be a convenient way to avoid compelling reporters to testify in court. For example, one state trial judge found a published newspaper article along with an affidavit from the reporter authenticating the article to be “an adequate and sufficient alternative form for the testimony sought by the State” in a murder prosecution. State v. Koolmo, No. 981905396 (Utah 3d Dist. Ct. March 29, 1999). Another trial court found that a criminal defendant's publicly available written statement, which was identical to the defendant's televised reading of the statement sought by prosecutors, was an appropriate alternative. State v. Michaels, No. 011902114 (Utah 3d Dist. Ct. July 9, 2001). In that case, the court relied on the alternative source analysis to quash the subpoena despite finding that the information sought was relevant and went to the heart of the matter.

However, one Utah trial court required a newspaper reporter to comply with a subpoena seeking her testimony at the preliminary hearing of a murder defendant even though the information sought from the reporter was available from other sources. State v. Martinez, No. 011501042 (Utah 5th Dist. Ct. April 29, 2002). In that case, the defendant had been accused of stabbing a barber to death with scissors after taking $200. From jail, the defendant sent confession letters to a newspaper reporter and the victim's wife. The defendant also reportedly confessed, at least in part, to police investigators. Nevertheless, the trial court neglected to consider the alternative sources and reasoned that the prosecution's interest in putting on its evidence as it saw fit at a preliminary hearing outweighed the reporter's privilege. The reporter testified at the preliminary hearing, but the defendant entered a guilty plea before trial.

In another case involving a published news article, a trial court concluded that there was “more evidentiary value from sworn testimony than from the news article alone.” In re: Inquiry of the State Ballot Law Commission of the State of Massachusetts, No. 020905264 (Utah 3d Dist. Ct. June 25, 2002). Consequently, the court ordered the reporter to provide her sworn testimony via affidavit concerning whether the source said what the reporter attributed to the source in the article. Id.

Following adoption of Rule 509, a magistrate judge confronted the issue again in the civil rights case Wood v. Farmington City, No. 2:10-CV-933-DB-PMW, 2011 WL 5834430, at *2 (D. Utah Nov. 21, 2011). In Wood, the court considered whether to quash the subpoena of a Salt Lake City newspaper reporter who witnessed and photographed a police standoff that ended in the death of the plaintiff. Id. The reporter was one of four total eye witnesses. Although the court did not apply Rule 509, it did apply the Silkwood factors and considered whether material was unavailable from other eye witness sources. The court concluded that the depositions of the other eye witnesses “weigh[ed] against the existence of the qualified privilege” but ultimately held the other two factors—i.e., that the evidence goes to the heart of the case and is highly relevant—weighed against the existence of the privilege. Id. at *3. The magistrate judge went on to explain that he was “not convinced that other sources are more apt to have relevant information” because the reporter was “the sole witness of the standoff who [was] not affiliated with either Plaintiffs or the police involved in the standoff” and “had the best vantage point of the standoff and viewed it through both a camera with a zoom lens and a spotting scope.” Id. Thus, the court declined to quash the subpoena. See id.

a. How exhaustive must search be?

b. What proof of search does a subpoenaing party need to make?

c. Source is an eyewitness to a crime

Rule 509 does not exempt news source’s eyewitness observations to a crime from the protection of the Rule. In cases where the leak of information to the source is alleged to be a crime, and thus the source a witness to the crime, a court must balance the need for disclosure of confidential and nonconfidential information against the interest in preserving the “continued free flow of information” to the source (and thus the public). See Utah R. Evid. 509 (c) & (d). This language allows for consideration of the public value of the information reported to the public, a factor not expressly provided by Silkwood or Bottomly, but which is critical in leak cases.

Before the adoption of Rule 509, a single Utah trial court confronted this issue. Although the court's treatment of this topic has no precedential value, it may serve to illustrate one way Utah trial courts might approach this question. On February 10, 2000, the ABC news program “20/20” broadcast a tape of a British woman allegedly undergoing a New Age procedure called trepanation, in which a hole is drilled in the skull in an attempt to relieve pressure and achieve heightened consciousness. The tape showed two men who were later charged by county prosecutors with practicing medicine without a license. The tape also showed that ABC News reporter Chris Cuomo was present and witnessed the trepanation procedure.

ABC, however, had placed a dot on the tape to cover the depiction of the woman's skull at the moment of actual drilling due to the graphic nature of the procedure. Thus, using only the broadcast version of the tape, prosecutors could not demonstrate that the two defendants actually conducted the procedure; the woman later claimed that she drilled the hole herself. In order to bolster their case, prosecutors subpoenaed Cuomo and the unedited ABC News tape. A state trial judge, in declining to quash the subpoena, relied heavily on the fact that Cuomo was present and witnessed the alleged crime: “At this point, Mr. Cuomo is the only eyewitness whose identity is known to the State. At this point, either Mr. Cuomo testifies, or the State will likely be obliged to dismiss their prosecution.” State v. Halvorson, No. 001500343 (Utah 5th Dist. Ct. Oct. 13, 2000). Thus, the trial judge said, the state had “met its burden to demonstrate that it has attempted to gather the evidence from other sources.” Id.

Following adoption of Rule 509, a magistrate judge confronted the issue again in the civil rights case Wood v. Farmington City, No. 2:10-CV-933-DB-PMW, 2011 WL 5834430, at *2 (D. Utah Nov. 21, 2011). In Wood, the court considered whether to quash the subpoena of a Salt Lake City newspaper reporter who witnessed and photographed a police standoff that ended in the death of the plaintiff. Id. The reporter was one of four total eye witnesses. Although the court did not apply Rule 509, it did apply the Silkwood factors and considered whether material was unavailable from other eye witness sources. The court concluded that the depositions of the other eye witnesses “weigh[ed] against the existence of the qualified privilege” but ultimately held the other two factors—i.e., that the evidence goes to the heart of the case and is highly relevant—weighed against the existence of the privilege. Id. at *3. The magistrate judge went on to explain that he was “not convinced that other sources are more apt to have relevant information” because the reporter was “the sole witness of the standoff who [was] not affiliated with either Plaintiffs or the police involved in the standoff” and “had the best vantage point of the standoff and viewed it through both a camera with a zoom lens and a spotting scope.” Id. Thus, the court declined to quash the subpoena. See id.

3. Balancing of interests

Utah Rule of Evidence 509 “requires the court to consider the interests of the person seeking disclosure and the interests of the free flow of information to news reporters.” Utah R. Evid. 509 advisory committee note (2008). In doing so, the Advisory Committee directed courts to consider the Silkwood v. Kerr-McGee Corp., 563 F. 2d 433 (10th Cir. 1977) factors of “(1) whether the party seeking the information has attempted independently to obtain the information, (2) whether the information being sought goes to the heart of the matter, (3) whether the information is of certain relevance, and (4) the type of controversy.” It also indicated that “[a]s the law in this area continues to develop, the court should consider other factors found to influence the open and free flow of information to news reporters.” Utah R. Evid. 509 advisory committee note (2008). Additionally, the rule does not contain exceptions to the privilege, “recognizing that in most cases those issues will be resolved by applying the balancing test[.]”

Even before Rule 509 was enacted, several state trial courts engaged in a balancing of interests in attempting to determine whether to quash a subpoena seeking a reporter's testimony. Among the interests that have been considered in such a balancing inquiry is “the interest of protecting First Amendment and common law privileges and interests of the journalists and reporters and not subjecting them to inappropriate or unnecessary inquiry as to their reporting inquiries.” Bottomly v. Leucadia Nat'l Corp., 24 Med. L. Rep. 2118, 1996 U.S. Dist. LEXIS 14760, at *6 (D. Utah July 2, 1996).

In connection with this balancing of interests, state trial courts have followed the U.S. Court of Appeals for the Tenth Circuit in examining the type of controversy involved in the underlying cases when reporters are subpoenaed. In civil and minor criminal cases, the reporter's privilege will be stronger than in serious criminal cases: “Some events, while constituting a minor crime or civil wrong, may not be so significant or serious that the reporter should be required to appear and testify.” State v. Halvorson, No. 001500343 (Utah 5th Dist. Ct. Oct. 13, 2000).

Even in case of serious criminal charges such as capital homicide, however, Utah trial courts have quashed subpoenas seeking reporters' testimony when the information was available through alternative sources. SeeState v. Koolmo, No. 981905396 (Utah 3d Dist. Ct. March 29, 1999).

In one capital homicide case, however, a Utah trial court refused to quash a subpoena seeking a reporter's testimony in part because the state’s interest in prosecuting the crime and putting on its evidence as it saw fit outweighed the reporter's privilege. State v. Martinez, No. 011501042 (Utah 5th Dist. Ct. April 29, 2002). In that case, the trial court was not persuaded by the newspaper's argument that the First Amendment interest in preventing a chilling effect on press freedoms justified quashing the subpoena. The newspaper also correctly predicted that forcing the reporter to testify would turn journalists into subpoena magnets. Soon after the preliminary hearing at which the reporter testified, the newspaper's publisher and editor were both subpoenaed by defense counsel for trial. The subpoenas were withdrawn, however, when the defendant pleaded guilty.

4. Subpoena not overbroad or unduly burdensome

There is no statutory or case law specific to this issue with respect to subpoenas of news media outlets or reporters. However, rules of civil and criminal procedure relating to subpoenas generally require parties or attorneys who serve subpoenas to “take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena.” Utah R. Civ. P. 45(e); see also Utah R. Civ. P. 26(b)(2) and 26(c); Utah R. Crim. P. 14(b) (“The court may quash or modify the subpoena if compliance would be unreasonable.”). The court is required to quash or modify a subpoena in a civil case if the court is presented with a motion requesting that the subpoena be quashed or modified and if the court determines that the subpoena “fails to allow reasonable time for compliance,” “requires disclosure of privileged or other protected matter and no exception or waiver applies,” or “subjects a person to undue burden.” Utah R. Civ. P. 45(c)(3)(A).

5. Threat to human life

In determining whether the reporter’s privilege can be overcome in the case of subpoenas seeking confidential sources, Rule 509 requires that “the person seeking the information demonstrate[] by clear and convincing evidence that disclosure is necessary to prevent substantial injury or death.”

6. Material is not cumulative

7. Civil/criminal rules of procedure

A person who is subpoenaed to produce documents may serve a written objection on the attorney or party designated in the subpoena. Utah R. Civ. P. 45(e)(4)(e). In that case, the party that served the subpoena may not inspect the documents absent a court order obtained after the requesting party files a motion to compel production. Utah R. Civ. P. 45(e)(5). A person who is subpoenaed may file a motion to quash with the court from which a subpoena was issued if the person believes the subpoena is unreasonable or unduly burdensome, or the information sought is obtainable from some other source that is more convenient, less burdensome, or less expensive. See Utah R. Crim. P. 14(b); Utah R. Civ. P. 45(e); Utah R. Civ. P. 26(b)(2) and 26(c).

d. Other elements

3. Agreement to partially testify act as waiver?

VII. What constitutes compliance?

In a civil case, non-parties who are subpoenaed to produce documents must be given at least fourteen (14) days to comply. Utah R. Civ. P. 45(e)(2). Such a non-party need not appear personally at the site at which the documents are to be inspected. Utah R. Civ. P. 45(e)(2).

B. Broadcast materials

C. Testimony vs. affidavits

Although there is no statutory or case law on this issue, state trial courts have allowed journalists to submit affidavits to verify statements made by news sources as reported in newspaper articles and thus avoid testifying in person. See In re: Inquiry of the State Ballot Law Commission of the State of Massachusetts, No. 020905264 (Utah 3d Dist. Ct. June 25, 2002); State v. Koolmo, No. 981905396 (Utah 3d Dist. Ct. March 29, 1999).

2. Criminal contempt

3. Other remedies

VIII. Appealing

A. Timing

1. Interlocutory appeals

There is no statutory or case law addressing this issue with regard to the reporter's privilege. For questions about interlocutory appeals generally, see Rule 5 of the Utah Rules of Appellate Procedure.

B. Procedure

1. To whom is the appeal made?

There is no statutory or case law addressing this issue with regard to the reporter's privilege. Generally, the Utah Supreme Court has jurisdiction over all cases except those over which the Utah Court of Appeals has original jurisdiction, and cases may be transferred between these two courts subject to Utah law. See Utah Code Ann. §§ 78-2-2 and 78-2a-3.

2. Stays pending appeal

There is no statutory or case law addressing this issue with regard to the reporter's privilege. For information about stays pending appeal generally, see Rule 17 of the Utah Rules of Appellate Procedure.